Linsanity Stirs (Lin)tellectual Property Rights Confusion

By Colin Tansits, a sophomore at Temple University’s School of Communications and Theater.

New York guard Jeremy Lin has led the Knicks to a 13-9 record since joining the starting lineup.

New York Knicks guard Jeremy Lin has become a polarizing figure in sports over the past few months. With his emergence out of seemingly nowhere into the spotlight of New York City, Lin transformed the world of sports.

His shy demeanor off the court paired with his offensive abilities on the court –averaging 14.7 points and 6.3 assists per game — put Jeremy Lin into a (lin)probable situation: his name is now being inserted into words to create a new word. The most popular word created basically sums up the entire story of the Harvard graduate, “lin-sanity.”

But with all of this hype, across all forms of media, where does the law fit into Jeremy Lin’s amazing rise to national stardom? Who owns the term “Lin-sanity” and why do they own it? Does Jeremy Lin have any say in the ownership of a word essentially created with his own last name?

To answer these questions and more, The Legal Blitz tracked down intellectual property expert Jeremy Sheff, a professor at St. John’s University School of Law. Prof. Sheff received his bachelor’s degree from Columbia University in 1999, and his Juris Doctorate from Harvard Law School in 2002. He teaches Introduction to Intellectual Property, Trademarks & Unfair Competition, and Property. His research interests span Intellectual Property law, First Amendment law, and Communications/Internet law.

Is there a clear owner of “Linsanity”?

Jeremy Lin would have rights in his persona under New York State law (assuming that’s where he lives). We call this the right of publicity. In New York, it’s established in Sections 50 and 51 of the Civil Rights Law, which prohibits the use for trade or advertising purposes of a living person’s name, portrait or picture without their consent. The flip side of this is that Jeremy Lin can consent to the use of his name and likeness, and often do so as part of promotional contracts; I don’t know whether Lin has any such contracts, but professional athletes often agree to allow at least some uses of their names and likenesses by the league that employs them.

Prof. Sheff

What about the use of his nickname in the media?

With respect to mass media uses, the short answer is that Lin’s right to publicity does not limit the right of the media to fairly report on his activities as a public figure, and the media outlets that do such reporting are permitted to refer to such fair reporting uses incidentally in the course of advertising their publications, so long as the use does not suggest sponsorship or approval by the celebrity. This was the holding in a lawsuit between Joe Namath and Sports Illustrated nearly 40 years ago. (Namath v. Sports Illustrated, 371 N.Y.S.2d 10 (1975)).

As for promotional and merchandising uses (posters and t-shirts, for example), Lin’s rights are likely to be governed by the Lanham Act, which is the federal statute that governs trademarks and unfair competition. The phrase “Lin-sanity” is one that clearly identifies Jeremy Lin by name, and federal law does not permit the registration of such trademarks by someone other than the person identified without that person’s written consent. The Lanham Act also forbids registration of trademarks that falsely suggest some relationship of affiliation or sponsorship with an actual person, so even if a literal version of Jeremy Lin’s name were not used, if the mark for which a registration is sought will be identified with Lin in the minds of the public, the registration will not be permitted. For this reason, the people other than Jeremy Lin who have been applying to register trademarks that include Lin’s name or otherwise refer to him are non-starters; the U.S. Patent and Trademark Office will not allow those registrations. Lin himself, however, could obtain such a registration, and could authorize someone else to obtain such a registration, if he does or intends in the near future to use the trademark on products that he (or the person he authorizes) will sell.

Does Lin have to register for a trademark?

A registration is not required in order to have trademark rights, and obtaining a registration does not guarantee that you have the right to prevent others from using a similar mark. Jeremy Lin could bring a lawsuit under Section 43(a) of the Lanham Act against anyone who uses a trademark in commerce that falsely suggests (in the minds of the public) that he endorses their product, whether or not he obtains a trademark registration, and whether or not the trademark identifies Lin specifically by name.

But he could not prevail in such a lawsuit against a use of a term or phrase by someone else if that use does not confuse the public into believing that the goods in question are approved by or affiliated with him. I think that most, if not all, courts these days would hold that someone using the phrase “Lin-sanity” on promotional goods or merchandise without Lin’s consent would be violating Section 43(a), and thus Lin could bring a lawsuit to prevent such use and potentially to obtain damages, though I could imagine arguments that might be made in litigation against such a result.

A lot could turn in such litigation on the question whether consumers of the merchandise in question believe that t-shirts with the phrase “Lin-sanity” on them were in fact authorized by Jeremy Lin. In practice, though, courts tend to come down in favor of the celebrity in these kinds of cases.

Are there any copyright claims?

Copyright is not really relevant here. Copyright protects works of authorship, and does not extend to short phrases or slogans like “Lin-Sanity,” which are protected by trademark law. As for duration, trademark protection can potentially last forever, so long as the trademark owner continues using the trademark to identify their goods or services. The right of publicity under New York law, however, expires with the death of the celebrity whose persona is protected by such rights. This is not true in other states, and the question which state’s law will apply to determine whether a right of publicity lasts longer than the celebrity’s life is generally determined by using the law of the state where the celebrity was domiciled (i.e., made their permanent home) at the time of death.

So the short answer to your questions is that if anyone has exclusive rights to the term “Lin-sanity,” it’s Jeremy Lin, though he could contract to sell or give those rights to someone else (either exclusively or otherwise). But it may be that Lin does not have exclusive rights to the term; if others use the term in ways that do not imply sponsorship or approval by Lin, they may be permitted to continue doing so as a matter of federal law, though they run the risk of getting sued regardless of whether such a suit would be successful (and I think it likely would be successful). And a court considering Lin’s publicity rights under New York state law would almost certainly hold that the use of his last name in the term “Lin-sanity” on t-shirts and other merchandise would give Lin a right to sue to stop such uses and potentially obtain damages.

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